Citation Nr: 9835093 Decision Date: 11/27/98 Archive Date: 12/01/98 DOCKET NO. 97-21 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for the cause of the veteran’s death. 2. Entitlement to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from December 1965 to December 1968. The appellant is the veteran’s widow. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied entitlement to service connection for the cause of the veteran’s death and Chapter 35 benefits. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that the death of the veteran, her husband, was caused by his military service. First, she maintains that the veteran was exposed to asbestos during service, which contributed to his death. Second, she maintains that side effects from medications for the veteran’s service-connected ulcer condition contributed to his death by causing peripheral vascular disease. Third, she maintains that the veteran’s service-connected ulcer condition was caused by a vascular condition, thereby implying that he should also have been service-connected for a vascular condition. She has made no specific contentions concerning her claim of entitlement to Chapter 35 Dependents’ Educational Assistance. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has failed to satisfy the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim for service connection for the cause of the veteran’s death is well grounded. It is also the decision of the Board that there is no legal basis for entitlement to Chapter 35 Dependents’ Educational Assistance. FINDINGS OF FACT 1. The veteran died on July [redacted], 1996. 2. The immediate cause of the veteran’s death was sudden death of questionable etiology due to, or as a consequence of, arteriosclerotic peripheral vascular disease. 3. Prior to his death, the veteran was service-connected for duodenal ulcer, evaluated as 20 percent disabling. 4. The appellant has not presented competent medical evidence showing that the arteriosclerotic peripheral vascular disease that contributed to the veteran’s death developed during service or was in any manner related to his service. 5. The appellant has not presented competent medical evidence showing that the veteran’s service-connected duodenal ulcer caused or aggravated the arteriosclerotic peripheral vascular disease that caused his death, nor that it caused or contributed substantially or materially to cause the veteran’s death. 6. It is plausible that the veteran may have been exposed to asbestos during service. 7. The appellant has not presented competent medical evidence that asbestos exposure during service caused the veteran’s arteriosclerotic peripheral vascular disease or contributed to the veteran’s death. 8. The medical evidence does not establish that any side effects of medications for treatment of the veteran’s service-connected duodenal ulcer caused or aggravated his arteriosclerotic peripheral vascular disease, or contributed substantially or materially in any other way to bring about his death. 9. The appellant’s claim for service connection for the cause of the veteran’s death is not plausible. 10. The veteran did not die of a service-connected disability, or have a total disability permanent in nature resulting from a service-connected disability, or die while a disability so evaluated was in existence. CONCLUSIONS OF LAW 1. The claim for service connection for the cause of the veteran’s death is not well grounded, and therefore there is no statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). 2. The basic eligibility requirements for entitlement to Dependents’ Educational Assistance allowance under Chapter 35, Title 38, United States Code are not met. 38 U.S.C.A. §§ 3500 and 3501 (West 1991 & Supp. 1998); 38 C.F.R. § 3.807 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran’s service medical records showed treatment for viral symptoms, duodenal ulcer, and a skin rash. He was hospitalized at Memorial Hospital from September to October 1969 for duodenal ulcer. From January to February 1993, the veteran was hospitalized at the VA Medical Center (VAMC) in Nashville for chronic abdominal pain. It was noted that he was status post vagotomy and antrectomy. From February to March 1993, he was again hospitalized at the VAMC in Nashville. Testing showed severe stenosis of the proximal celiac artery and superior mesenteric arteries. A vascular surgery consult was obtained, and the veteran was evaluated for possible mesentery bypass. Prior to his operation, he underwent pulmonary function tests that showed FEV1 (forced expiratory volume in one second) of 3.25. He then underwent endarterectomy of his superior mesenteric and celiac arteries. He had significant improvement in his symptoms, and it was concluded that his chronic abdominal pain and weight loss were secondary to mesenteric angina. Chest x- rays showed small bilateral pleural effusions and left basilar atelectasis without evidence of acute pulmonary infiltrate. Discharge diagnoses were mesenteric ischemia, gastroparesis, and right foot drop. A rating decision of June 1993 granted service connection for duodenal ulcer, with assignment of a 20 percent disability rating. The veteran’s VA outpatient records covering the period October 1993 to August 1995 showed that he had an excellent post-operative recovery. He complained of problems with numbness of his toes and pain in his legs beginning in the fall of 1993. In August 1995, he indicated that his gastrointestinal symptoms had gradually worsened over the prior year. He was taking several medications. He was told to discontinue Tagamet and begin taking Zantac. It was determined that he had chronic neuropathy of questionable etiology. An addendum to the progress note indicated that alcohol was the likely cause for the veteran’s complaints of numbness and questionable neuropathy. In July 1996, the appellant submitted a claim for dependency and indemnity compensation. She submitted a death certificate showing that the veteran had a sudden death of questionable etiology on July [redacted], 1996, due to, or as a consequence of, arteriosclerotic peripheral vascular disease. An autopsy was not performed. The appellant indicated in her claim that the veteran’s asbestos exposure during service contributed to his death. She submitted a report of chest x-rays conducted in February 1996, which showed increased soft tissue density in both lung bases, possibly representing pleural thickening and asbestos- related disease. No definite calcifications were seen. She also submitted a report of chest CT scan conducted in April 1996, which showed a small amount of pleural thickening in the right lung base with no calcified pleural plaques. It was noted that pleural thickening is associated with asbestos disease; however, the costophrenic angles were usually spared. These findings could also be due to previous effusions or hemothorax. The CT scan also showed vascular calcifications in the aorta and great vessels, and the radiologist’s impressions included atherosclerotic peripheral vascular disease. In August 1996, the appellant submitted a statement indicating that the veteran was exposed to asbestos on a daily basis during service while working in engineering. She submitted an application for federal employment that was completed by the veteran. Although not dated, this form was apparently completed sometime after September 1993, since that was the date of his last employment shown on the form. The veteran indicated that he was a machinist’s mate during service, and he maintained all the air conditioning and refrigeration systems, ventilation, steam heating systems, laundry equipment, and the ship’s emergency generator. After service, he worked as an auto mechanic repairing vehicles until 1978. His work experience specifically included brake drum and rotor lathe operation. He then owned and operated a trucking business until 1984, and he then worked as an auto mechanic until 1993. The veteran’s military assignments showed that he was aboard the U.S.S Camden from July 1966 to December 1968. A rating decision of October 1996 denied service connection for the cause of the veteran’s death and denied eligibility for Dependents’ Educational Assistance under 38 U.S.C. Chapter 35. In her notice of disagreement, the appellant stated that the veteran’s stomach ulcer was due to the fact that he had small vessels. She stated that if his service- connected stomach disorder was caused by a vascular condition, it was plausible that the same vascular condition caused his death. In an April 1997 statement, the appellant indicated that the medications the veteran took for his service-connected ulcer, mainly dipyridamole and Prilosec, adversely affected his veins, thereby causing or contributing to his arteriosclerotic peripheral vascular disease that caused his death. She stated that she was submitting evidence showing that use of this medication could cause peripheral edema. She submitted two pages from Physician’s Desk Reference, which discussed Prilosec. It was indicated that peripheral edema was a potential adverse reaction, which occurred in less than one percent of patients and the relationship to Prilosec was unclear. In August 1997, the appellant had a personal hearing at the RO. Her contentions were the same as those discussed above. She indicated that Dr. Robert Moses, who performed the veteran’s arteriosclerotic operation in 1993, said that the veteran had very small veins, and this was probably the reason for his ulcer. She discussed the veteran’s operation in 1970, when he had part of his stomach removed, and his respiratory complaints. She stated that if his lungs were “bad,” it would “work on the heart too and make the blood have to pump harder and if he had a vascular problem to begin with and then the asbestos on top of it plus the medication . . . maybe there’s a relation to it.” The appellant submitted information on Prilosec, which was identical to that discussed above. She maintained that this information showed that the veteran should have only taken Prilosec for two months, but he took it for approximately seven months. She also submitted information on dipyridamole, which indicated that it should be used with caution in patients with hypotension since it could produce peripheral vasodilation. She testified that this medication was prescribed to “expand” the veteran’s peripheral veins because they were so small. The RO obtained the veteran’s VA outpatient records covering the period August 1995 to June 1996. The veteran continued to receive treatment for his ulcer disease. It was noted that gastric emptying studies were normal and EGD (esophagogastroduodenoscopy) showed no gastric ulcer or erosions. He was doing well on Prilosec. An examiner concluded that the veteran’s symptoms did not appear to be chronic mesenteric ischemia as he had no weight loss, food fear, or postprandial pain. It could be bile reflux, despite the EGD findings. The veteran continued to complain of numbness of the legs, and it was noted in September 1995 that he refused to believe the neuropathy could be related to alcohol. He reported that physicians have always blamed his symptoms on alcohol and false diagnoses had therefore been made in the past. The veteran’s medical records from Memorial Hospital showed that he underwent subtotal bilateral vagotomy and subtotal gastric resection in January 1970. A medical record from Fort Campbell dated in July 1996 showed that the veteran was brought to the emergency room after suddenly collapsing at work. Attempts to revive him were unsuccessful. The conclusion was sudden death of questionable etiology. In December 1997, the RO sought a medical opinion as to whether it is at least as likely as not that the veteran’s death was caused by his service-connected ulcer. The request summarized the veteran’s medical history. The doctor reviewed the claims file and concluded that the veteran’s service-connected duodenal ulcer disease was not at least as likely as not a direct or proximate cause of his death. II. Legal Analysis Cause of death Under the pertinent statutes and regulations, service connection may be established for the cause of a veteran’s death when a service-connected disability “was either the principal or a contributory cause of death.” 38 C.F.R. § 3.312(a) (1998); see 38 U.S.C.A. § 1310 (West 1991); see also 38 U.S.C.A. §§ 1110 and 1112 (West 1991 & Supp. 1998) (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that disability, “singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.” 38 C.F.R. § 3.312(b) (1998). A contributory cause of death must be causally connected to the death and must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312(c)(1) (1998). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran’s death may be demonstrated by showing that the veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110 and 1131 (West 1991); 38 C.F.R. §§ 3.303(a), (b) and (d) (1998). Establishing direct service connection for a disability that has not been clearly shown in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. §§ 1110 and 1131 (West 1991); 38 C.F.R. § 3.303(d) (1998); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In addition, service connection may be established on a secondary basis for a disability, shown to be proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1998). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (1998); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). The appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is “a plausible claim, one that is meritorious on its own or capable of substantiation.” Robinette v. Brown, 8 Vet. App. 69, 73-74 (1995); Murphy, 1 Vet. App. at 81; see also Johnson v. Brown, 8 Vet. App. 423, 426-27 (1995) (applying well-grounded claim requirement in context of service connection for cause of veteran’s death). If the appellant has not presented a well-grounded claim, then the appeal fails as to that claim, and the Board is not obligated under 38 U.S.C.A. § 5107(a) to assist her any further in the development of that claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The type of evidence required to make a claim well grounded depends upon the issue presented by the claim. If the determinative issue turns on a question of medical causation or diagnosis, competent medical evidence is required to state a plausible claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, 1 Vet. App. at 81). The appellant cannot meet her initial burden under 38 U.S.C.A. § 5107(a) simply by relying on her own opinion as to medical causation; lay persons are not competent to offer medical opinions. Grottveit, 5 Vet. App. at 93 (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992)). The appellant alleges that the veteran should have been service connected for the arteriosclerotic peripheral vascular disease that contributed to his death, based on a purported relationship between his ulcer and “small veins.” First, there is no medical evidence of record that renders plausible a claim for direct service connection on the theory that the veteran’s arteriosclerotic peripheral vascular disease developed during his military service. Although the veteran had arteriosclerotic vascular disease involving the superior mesenteric and celiac arteries for which he was treated in 1993, the first evidence of record showing arteriosclerotic peripheral vascular disease was in 1996, which was approximately 28 years following the veteran’s separation from service. Moreover, the record lacks evidence of a nexus, or link, between arteriosclerotic peripheral vascular disease and the veteran’s active service. There are no medical opinions contained in any of the veteran’s post- service medical records relating this condition to any disease or injury in active service. Second, there is also no medical evidence of record that renders plausible a claim for secondary service connection. The appellant’s theory is that the veteran’s vascular condition caused his service-connected ulcer disorder. She does not, however, maintain that the veteran’s service- connected ulcer disorder caused or aggravated his vascular disease. Moreover, there are no medical opinions contained in any of the veteran’s post-service medical records relating the veteran’s arteriosclerotic peripheral vascular disease to his service-connected ulcer disorder. The Board notes that the appellant testified that Dr. Moses told the veteran that his small veins [sic] probably caused his ulcer. While the medical evidence does show that the veteran had arterial disease, nothing in the medical record reflects any diagnosis or treatment for a problem with his veins, as opposed to his arteries. It is not necessary to obtain such an opinion from Dr. Moses since this opinion would be irrelevant. Secondary service connection could only be granted for a disorder caused or aggravated by a service-connected condition. Nothing in the medical evidence indicates that the veteran had a venous disease or that a disease of the veins in any way contributed to his death. The appellant also alleges that the veteran should have been service-connected for disease due to asbestos exposure. There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter M21-1). VA must analyze the appellant’s claim of entitlement to service connection for the cause of the veteran’s death based on asbestos exposure under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. Some of the major occupations involving asbestos exposure include work in shipyards, insulation work, manufacture and servicing of friction products such as clutch facings and brake linings, and installation of asbestos pipe products. M21-1, Part VI, 7.21(b)(1), p. 7-IV-3 (January 31, 1997). There is a prevalence of asbestos-related disease among shipyard and insulation workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). The evidence of record establishes the plausibility of the contention that the veteran may have been exposed to asbestos during his military and his post-service employment. His military duties apparently included maintaining air conditioning and refrigeration systems aboard ship. His civilian employment included substantial experience in automobile and truck maintenance and repair, and specifically included work on brake repair, which is one of the listed occupational exposures for asbestos. Asbestos exposure both during and after service is plausible on the record. See McGinty, 4 Vet. App. 428 (the veteran’s testimony as to the cause of his disease was not competent evidence of causation because the determination of the cause of a disease is a medical matter; however, the veteran was competent to testify as to the facts of his asbestos exposure, i.e., wearing asbestos gloves while performing his duties as a “hot caseman” in the Navy). Exposure to asbestos does not establish entitlement to service connection. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, 7.21(b)(c), p. 7- IV-3 (January 31, 1997). Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Id. The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). As discussed above, the veteran did have pleural effusions and pleural thickening, possibly caused by asbestos exposure. There were no medical findings of any infiltrative process, fibrosis, or pleural plaques, and a diagnosis of asbestosis was not rendered. However, the contention that the veteran’s exposure to asbestos somehow caused the arteriosclerotic peripheral vascular disease that contributed to his death is not plausible. Peripheral vascular disease is not one of the disorders that result from asbestos exposure. See M21-1, Part VI, 7.21(a)(1) and (3), p. 7-IV-3 (January 31, 1997). There is no medical evidence of record showing that the veteran’s arteriosclerotic peripheral vascular disease developed as a result of asbestos exposure. The appellant also argues that the veteran’s service- connected duodenal ulcer contributed to his death, in that his medications caused his vascular disease. However, the evidence of record does not support a finding of a relationship between the veteran’s service-connected ulcer disorder and the arteriosclerotic peripheral vascular disease. The evidence submitted by the appellant is not persuasive. There is no medical opinion of record indicating that a relationship between any of the medications prescribed for the veteran’s ulcer disorder and his death is plausible. Even though peripheral edema may be an adverse reaction to Prilosec, there is no evidence in the veteran’s outpatient record that he ever had peripheral edema, which is an accumulation of excess fluid. See Stedman’s Medical Dictionary (26th ed.1995). Peripheral edema is not the same entity as arteriosclerotic peripheral vascular disease. With respect to the appellant’s argument that the veteran should not have been given Prilosec for more than two months, the information she referred to stated that Prilosec was for short-term treatment (4-8 weeks) of symptomatic gastroesophageal reflux disease. If the patient did not respond, an additional 4 weeks of treatment might be warranted. It is stated that “[t]he efficacy of PRILOSEC used for longer than 8 weeks in these patients has not been established.” There is no indication in the literature supplied by the appellant that use of Prilosec for longer than 8 weeks would be harmful; rather, the efficacy, or effectiveness, of the medication would be reduced with long- term use. With respect to the veteran’s use of dipyridamole, the medical evidence does not show that the veteran had hypotension. Therefore, any caution about use of this medication in patients with hypotension is irrelevant. The medical evidence of record expressly refutes that a connection between the veteran’s service-connected ulcer disorder and his death is plausible. At the RO’s request, a medical doctor reviewed the evidence of record and concluded that the veteran’s service-connected duodenal ulcer was neither a direct nor proximate cause of the veteran’s death. There is no contradictory medical opinion of record. The only evidence alleging a link between the veteran’s arteriosclerotic peripheral vascular disease and his military service, or between his death and his service-connected ulcer, consists of the appellant’s statements. She also contends that the veteran was exposed to asbestos during service and that this exposure somehow contributed to his death because his lungs were “bad.” However, there is no indication that the appellant possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette, 8 Vet. App. at 74; Espiritu, 2 Vet. App. at 494. Consequently, her statements regarding the cause of the veteran’s death are insufficient to establish a well-grounded claim for service connection for arteriosclerotic peripheral vascular disease, asbestos exposure, or the cause of the veteran’s death, on a direct or secondary basis. Therefore, her claim must be denied. The appellant has the initial burden of establishing a well- grounded claim for service connection for the veteran’s cause of death or for a disorder, and, until she does so, VA has no duty to assist her. 38 U.S.C.A. § 5107(a) (West 1991); see Grivois v. Brown, 6 Vet. App. 136, 139-140 (1994). Where a claimant refers to a specific source of evidence that could make her claim plausible, VA has a duty to inform her of the necessity to submit that evidence to complete the application for benefits. See Robinette, 8 Vet. App. 69. VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete her application for VA benefits, 38 U.S.C.A. § 5103(a) (West 1991), in this case, because nothing in the record suggests the existence of evidence that might show: (1) that the veteran’s arteriosclerotic peripheral vascular disease is (a) connected to any disease or injury during service, including asbestos exposure, or (b) was caused or aggravated by his service-connected duodenal ulcer or , or (2) that the veteran’s cause of death was due to his service-connected duodenal ulcer, including medication usage. The presentation of a well-grounded claim is a threshold issue, and the Board has no jurisdiction to adjudicate the claim unless it is well grounded. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of the claim, because such additional development would be futile. See Murphy, 1 Vet. App. 78. Entitlement to Chapter 35 Dependents’ Educational Assistance Dependents’ Educational Assistance allowance under Chapter 35, Title 38, United States Code may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility exists if the veteran: (1) was discharged from service under conditions other than dishonorable or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or (if a serviceperson) (5) is on active duty as a member of the Armed Forces and now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power. 38 U.S.C.A. §§ 3500 and 3501 (West 1991 & Supp. 1998); 38 C.F.R. § 3.807 (1998). As noted above, the veteran died many years after service of a nonservice-connected disability. Since service connection has not been established for the cause of the veteran’s death, it follows that the appellant is not entitled to the Dependents’ Educational Assistance on this basis. At the time of the veteran’s death in July 1996, his combined disability evaluation was 20 percent. Therefore, he was not in receipt of a total and permanent disability evaluation due to service-connected disability at the time of his death. Under these circumstances, the appellant does not meet the basic eligibility requirements for entitlement to Chapter 35 Dependents’ Educational Assistance, and her claim, therefore, must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER 1. Having found the appellant’s claim for service connection for the cause of the veteran’s death not well grounded, the appeal is denied. 2. Entitlement to Chapter 35 Dependents’ Educational Assistance is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -